True Valor And Free Speech

In the storm of reaction to the Supreme Court’s decision about the Affordable Care Act, it was easy to overlook another significant decision handed down that morning. The Court made an important and correct call on freedom of speech.

Last year, I wrote in support of the Ninth U.S. Circuit Court of Appeals’ decision to strike down the Stolen Valor Act. The Supreme Court upheld that judgment, 6-3.

Xavier Alvarez lied to his fellow members on the board of a California water district, falsely claiming to be a Congressional Medal of honour recipient at a public meeting in 2007. He was prosecuted under the 2006 law, which made it a crime for a person to falsely claim to have been decorated by the U.S. armed forces, with harsher sanctions regarding the Medal of honour. Alvarez appealed, claiming his remarks were protected speech.

The high court’s decision was not a foregone conclusion. The New York Times noted that, during oral arguments in February, most of the justices seemed to accept that the First Amendment did not protect knowingly false statements that caused at least some kinds of harm.

The court’s ruling last week left open the possibility that Congress could rewrite the act more narrowly. Justice Stephen Breyer, in a concurring opinion, wrote that a more finely tailored statute could stand up to future scrutiny, such as “…a statute that requires a showing that the false statement caused specific harm or is focused on lies more likely to be harmful or on contexts where such lies are likely to cause harm.”

Veterans’ organisations were disappointed, but others commended the court’s decision, including Jameel Jaffer, the deputy legal director for the American Civil Liberties Union: “The First Amendment reserves to individual citizens, not the government, the right to separate what is true from what is false, and to decide what ideas to introduce into private conversation and public debate,” Jaffer said.

Justice Anthony Kennedy, who penned the majority opinion, expressed scepticism toward the claim that the Act is necessary to protect the prestige of military honours and their recipients. He detailed the ridicule Alvarez faced once his lie became known, and suggested that “…the outrage and contempt expressed for respondent’s lies can serve to reawaken and reinforce the public’s respect for the Medal, its recipients, and its high purpose.” Counterspeech serves the government’s purpose without restricting free speech. Kennedy also suggested that the government could maintain and make available an online database of Medal of honour winners, making false claims easy to expose.

Lying to profit monetarily is already illegal under the umbrella of fraud. Perjury is illegal as well, as is defamation. There are certainly ways in which lies can directly injure, and they should not pass unchecked. But lying alone is not enough to make a crime. The court’s decision in United States v. Alvarez rightly upheld that principle.

As Kennedy put it, “Fundamental constitutional principles require that laws enacted to honour the brave must be consistent with the precepts of the Constitution for which they fought.” True valor can’t be stolen.

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